Guest Lecture by Joseph Dennis (University of Wisconsin-Maison): "Songs to Encourage the Cessation of Litigation"

"Songs to Encourage the Cessation of Litigation: Print, Orality, and Legal Knowledge in China, 1595-1949"

Abstract:

“Cease litigation” (xisong 息訟) has been a key term in Chinese legal culture and practice since antiquity and exploring the historical xisong discourse provides a window into the inner workings of Chinese society, culture, and governance. From the 1590s through the 1940s and beyond, Chinese officials implored the populace to be less litigious. They made their appeals in multiple formats: poems, stone stelae erected in public places, proclamations, essays, magistrates’ handbooks, public lectures, posters, and instructions to clan members, but the most important was “songs to encourage the cessation of litigation” (xisongge 息訟歌).

The songs were simple, rhymed, and had repetitive, catchy hooks. For example, this excerpt from a song that circulated in a Tibetan region in the 1730s emphasized litigation’s cost:

I urge commoners not to submit disputes to officials...

In hearing cases, when litigants come before the yamen, making an accusation costs money, filing suit costs money.

The xisongge genre began in the context of increasing litigation in a rapidly commercializing society. Overburdened local magistrates hoped to reduce their caseloads and stabilize turbulent districts by warning people of the dangers and costs of litigation, admonishing them to work out their differences without going to court, and supporting village and county-level mediation organizations. Initially, jailors, elders, and disabled people were hired to sound bells with wooden clappers and chant these songs while walking through towns and villages. In the 1600s and 1700s local magistrates printed the songs, which were four to eighty verses long, posted them in public, and published them in county gazetteers. By the late-1800s, they appeared in song collections, newspapers, and magazines. In the 1920s-40s, the songs were commercially printed and sold by the hundred to “cessation of litigation committees.” These were village organizations, first formed by warlords and then by the Nationalist Party-led government, that promoted local mediation and moral training. The committees distributed the songs and led people in singing them at mass rallies.

My project is situated at the intersection of three bodies of scholarship: legal history, print culture, and orality/aurality/soundscape. I focus on two major areas in legal history: legal knowledge and litigation. First, I argue that xisongge were an important way for magistrates to shape public discourse over the role of law in Chinese society. I engage recent scholarship on “legal knowledge,” which Zelin and Li (2015) describe as “an epistemological field whose modes of production, transmission, and contestation shape what constitutes law and justice and how the state is legitimized or imagined.” Their volume notes that in Qing and Republican China, novels, plays, and journalistic reports of legal cases shaped popular ideas of justice and that “early-twentieth-century legal reformers and later socialist cadres avidly promoted legal knowledge and consciousness to mold different kinds of modern subjects or citizens.” My study differs in three ways: 1) I examine legal knowledge in a previously unexplored genre. 2) Earlier work focused on elite knowledge, while my study is aimed at common people’s knowledge. 3) Previous studies analyzed abstract notions of justice found in single plays or novels in a narrow time frame, while my study examines concrete characterizations of legal process and change over multiple centuries.

With regard to litigation, I argue that recent scholarship overstates its importance to the operation of Chinese society and government. Prior to the 1980s, scholars focused on law codes over legal practice, and assumed that litigation was rare. However, once Chinese archives opened up, scholars began using case files to study legal practice and its effects on daily life. Sommers and others demonstrated that social practice often diverged sharply from legal proscription. One important finding was that contrary to previous assumptions, many people went to court (Macauley, 1998). Although case-based analysis has opened up new fields of study and provided an important corrective to earlier scholarship, it also has led scholars to exaggerate the frequency and significance of lawsuits. When one reads cases all day it is easy to forget that most people never sued, even when they had a viable case.

A major reason people rarely sued was pervasive socialization that began early in life and continued throughout adulthood. Reading primers, such as Forest of Jade for Children’s Studies, taught children that litigation was immoral, and at mandatory public meetings government functionaries exhorted adults to forbear rather than litigate (Gong, Zhang). My book will argue that easily-remembered and widely-disseminated songs were the most important means of anti-litigation socialization, more so than primers and lectures.

Because xisongge were heard as well as read, studying them can contribute to our understanding of orality, aurality, and soundscapes. The simple, memorable phrases heard in the songs, such as “litigation traps people,” powerfully shaped mass legal consciousness. Magistrates disseminated the songs in largely-illiterate areas, first in zones of cultural contact where many non-Chinese understood only simple spoken Chinese, then in rural areas of the Chinese heartland, and finally to cities that were destabilized by mass rural-to-urban migration.